J. Ostapiw

The offender, a 21-year-old first-time offender, was sentenced for possessing a loaded firearm and 85 grams of fentanyl for the purpose of trafficking.

The court considered the serious aggravating factors of the deadly nature of fentanyl and the danger posed by the loaded firearm during a police raid.

Mitigating factors included the offender's youth, lack of prior record, supportive family, and the impact of anti-Black racism and socio-economic disadvantage on his background.

The court also factored in harsh pre-sentence custody conditions due to COVID-19 lockdowns.

A total sentence of 6 years was imposed after applying the totality principle, with 55 months of enhanced pre-sentence credit, leaving 17 months to serve.

The applicant brought a pre-trial change of venue application before the Regional Senior Judge.

A temporary publication ban was imposed, and the court invited submissions on whether section 648(1) of the Criminal Code automatically bans publication of information regarding pre-trial applications heard before a jury is chosen.

The court held that section 648(1) does not apply to applications heard before a jury is empanelled, nor to change of venue applications, nor to applications heard by a judge other than the trial judge.

Instead, publication bans for such pre-trial applications must be determined using the common law Dagenais/Mentuck test.

The applicant, charged with second-degree murder in a 1998 cold case, applied to change the venue of his trial from Sudbury to Toronto, arguing that extensive pre-trial publicity and public support for the victim made it impossible to empanel an impartial jury in the Northeast Region.

The court reviewed the extent and content of the media coverage, social media commentary, and a public opinion survey.

The court found that the applicant failed to establish a fair and reasonable likelihood of widespread partiality or prejudice that could not be overcome by the safeguards of the jury system.

The application was dismissed, though the court noted the trial might still be moved within the region due to COVID-19 constraints, and imposed a publication ban on specific portions of the reasons.

The Crown brought an application to remove the accused's defence counsel due to an alleged conflict of interest.

One of the defence counsel had previously represented a former suspect who was initially charged with the same murder in 1998 before being cleared by DNA and fingerprint evidence.

The Crown argued counsel would be unable to effectively challenge the forensic evidence or advance a third-party suspect defence without implicating the former client.

The court dismissed the application, finding that a third-party suspect defence pointing to the former client was not realistically available and that counsel could effectively challenge the forensic evidence without implicating him.

The accused's right to counsel of choice was upheld.